United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE
Stevenson Peterson moves to suppress evidence that the police
obtained following a traffic stop on June 22, 2018.
Specifically, Peterson asks the Court to suppress evidence
seized following a car search conducted with and without a
warrant, evidence seized following a strip search, and
statements he made to the police after the strip search. For
the reasons that follow, the Court will suppress the fruits
of the strip search but not the fruits of the car search.
The Overdose and Resulting Investigation
November 29, 2017, Elizabeth Rosie died from a heroin
overdose in Caroline County, Virginia. Officers from the
Tri-County Drug Task Force-including Special Agent Steven J.
Aziz of the Drug Enforcement Agency ("DEA"),
Investigator Benjamin Sadler of the Caroline County Sheriffs
Office, and Investigator Michael Lewis of the Caroline County
Sheriffs Office- responded to the overdose at Mrs.
Rosie's home. When the officers arrived, they spoke to
Mrs. Rosie's husband, Gregory Kenneth Rosie. Mr. Rosie
told the officers that the source of the heroin was a
Richmond-based dealer called "Doe or Doughboy."
Hr'g Tr. 276:17-18, Feb. 26, 2019 (Dk. No. 121); Mar. 8,
2019 (Dk. No. 122).
Rosie also told the officers how he obtained the heroin that
resulted in his wife's overdose. He said that he paid
Jenna Rose Queen, who in turn contacted the Richmond dealer.
Several times a week, Marcus Watson drove Queen to Richmond
to meet the dealer. The officers later interviewed Queen and
Watson, who corroborated Mr. Rosie's
account. Queen identified Peterson as "Doe or
also showed the officers her text messages with Peterson.
After Queen texted Peterson with her requests, Queen and
Peterson arranged to meet "at the usual place"-a
location near a McDonald's in the Shockoe Bottom
neighborhood of Richmond. Id. at 279:10. Queen said
that she met Peterson inside his black SUV for several
minutes outside the McDonald's. After completing the
transaction, Watson drove Queen back to Caroline County,
where she distributed heroin to Mr. and Mrs. Rosie and
on the information the officers learned from Rosie and Queen,
the officers began conducting regular surveillance of
Peterson. Aziz testified that the officers watched Peterson
meet "with several people throughout the course of the
night for very short times." Id. at 282:15-16.
For example, the officers-including Aziz and Lewis-followed
Peterson to a Wal-Mart parking lot in Richmond on May 29,
2018. The officers watched Peterson get out of his car, walk
to the driver's side window of another car, and hand the
driver an object. The officers later identified the driver as
Eric Davis, a heroin user who overdosed in August, 2017.
on the surveillance of Peterson and the interviews with Queen
and Watson, Aziz obtained a GPS tracking warrant for two of
Peterson's cars, including a white Chevrolet van and a
The Planned Traffic Stop and Warrantless Search
22, 2018, the GPS tracker showed the black Mercedes traveling
north from Richmond to Baltimore, Maryland. The officers
found Peterson's travel "out of the ordinary"
because he tended to remain in the Richmond area.
Id. at 285:18-19. After arriving in Baltimore,
Peterson made a brief stop on West Fayette Street, which Aziz
knew to be "a heroin corridor."Wat 288:15-16.
knew that Peterson had a suspended driver's license, so
he decided to instruct the other officers to conduct a
traffic stop during Peterson's trip back to Richmond.
Aziz first contacted Special Agent Steven Davis of the DEA
field office in Washington, D.C. Davis located the Mercedes
traveling south on Interstate 95 near Woodbridge, Virginia,
and confirmed that Peterson was the driver.
Sadler, Trooper Derek Russell of the Virginia State Police,
and other officers met in a parking lot near an exit ramp off
Interstate 95 in Spotsylvania County, Virginia. Russell ran
Peterson's name and date of birth in his database, which
confirmed that Peterson had a suspended driver's license
and showed a 2005 arrest from Maryland involving "large
quantities of drugs [taped to] the inside of [Peterson's]
thigh." Id. at 148:6-7. Lewis, Sadler, and
Russell decided to conduct "a normal traffic stop"
to avoid exposing the larger Task Force investigation.
Id. at 149:1.
approximately 8:00 p.m., Russell spotted the black Mercedes
traveling south on Interstate 95. He saw Peterson hit the
brakes "extremely hard[, ] causing the front of the
vehicle to go down." Id. at 149:24-150:1.
Russell also noted that Peterson did not have has headlights
on, despite the drizzling rain and overcast weather
conditions. After Russell pulled onto the highway, Peterson
moved to the center lane closely behind a black Dodge
Charger, which Aziz was driving. Russell then turned on his
emergency equipment and stopped Peterson.
Peterson pulled over on the right shoulder, Russell
approached the passenger's side of the car and asked
Peterson for his license and registration. Russell observed
that Peterson "was sweating profusely, was trembling, in
an attempt to locate his license." Id. at
151:7-8. After Peterson admitted that he had a suspended
license, Russell ordered him to get out of the car and to
step in front of Russell's patrol car in the middle of
the shoulder to avoid oncoming traffic. At that time, Lewis
pulled up in an undercover car a short distance behind
Russell's marked patrol car. Russell returned to his
patrol car to verify that Peterson had a suspended license.
Russell signaled for Lewis to pull closer to the scene of the
traffic stop. Lewis then got out of his car with Walker, a
drug detection dog. Lewis approached Peterson, explained that
he had a drug detection dog with him, and told Peterson that
he planned to "screen" Peterson's car and his
person. A "screen" of a car involves a two-step
process, which Lewis uses "every time" Walker
detects drugs in the field. Id. at 26:3-5. First,
Walker completes an "undirected pass" or a
"dog pass," in which Lewis allows Walker to run
around the car to try to detect drugs without any direction.
Id. at 25:13-21. Second, Lewis completes a
"detailed pass," in which Lewis directs Walker
"to go up and down on the vehicle" to try to detect
drugs on "different areas of the vehicle that [Walker]
might not have gotten on [his] own undirected."
Id. at 25:24-26:2.
complete the undirected pass on Peterson's car, Lewis
first released Walker by the front of the car. Walker
"casted" by the driver's side headlight,
id. at 24:25, meaning that he went "back and
forth" on the car to try to "pinpoint the source
[of the odor]." Id. at 26:17-24; see also
Id. at 28:12. When cars travel at high speeds-as the
Mercedes had been before the stop-the wind pushes any drug
odor from the inside of the car to the front of the car,
where Walker casted. See Id. at 27:2-5. According to
Lewis, a drug detection dog indicates to its handler that it
smells drugs either through an "alert" or a
"response." Id. at 30:5-9. For Walker,
"[a]n alert is any change in behavior that is consistent
with when [Walker is] within the odor of a narcotic."
Id. In contrast, "a response is an actual
sit." Id.; see also Id. at 49:15-18.
In other words, Lewis refers to an "alert" as some
weaker indication that Walker smells drugs than a
"response." Lewis interpreted Walker's casting by
the driver's side headlight as an alert. Id. at
Lewis began the detailed pass by directing Walker to the
passenger's side door, where Walker stopped and looked at
Lewis. Lewis interpreted Walker's behavior by the
passenger's side door as an alert. See Id. at
32:23-33:2 ("He is telling me there's an odor of
narcotic specifically in that vehicle.").
Lewis completed the detailed pass, he told Peterson that he
would screen Peterson's person. When Walker smelled
Peterson's right hand, Walker stopped, paused, and looked
back at Lewis. Lewis interpreted Walker's behavior as an
alert. See Id. at 35:6-11.
Peterson told Russell that he was returning to Richmond from
a trip to northern Virginia. After Russell asked Peterson if
he had anything in the car, Peterson told Russell that he
recently had the car detailed, so Russell would not find
anything. Id. at 154:8-13. Lewis told Peterson that
Walker had alerted on the Mercedes and Peterson's person.
When Russell asked Peterson why Walker alerted on his right
hand, Peterson said that he had held "some
marijuana" in his hand earlier that day before returning
to Richmond, but that the marijuana did not belong to him.
Id. at 154:15-23.
on Walker's alert on Peterson's right hand and
Peterson's suspended driver's license, Russell
handcuffed Peterson and patted him down. Peterson
"seemed to be pretty calm" when Russell patted him
down from his neck to his arms. Id. at 158:20-21.
When Russell got within two to three inches of Peterson's
groin area, however, Peterson "clinched up fairly
tightly." Id. at 158:22-24, 159:14-16. After
the initial pat down, Peterson asked Russell if he could
leave the scene.
Russell patted down Peterson a second time, Peterson again
clinched as Russell got to his groin area. Russell also noted
that Peterson was wearing multiple layers of
clothing. Russell tried unsuccessfully to untie
the waistband of Peterson's sweatpants to see if Peterson
had illegal drugs hidden under his clothes. Russell then told
Peterson that he was under arrest for driving on a suspended
license and explained that he would be taking Peterson to
Pamunkey Regional Jail to appear before a magistrate.
and two other officers began searching the Mercedes on the
side of the road. Lewis found three cell phones and a box of
Mannite in a black trash bag. Mannite is the brand name for a
mannitol product-a sugar alcohol often used as a cutting
agent for illegal drugs. See Id. at 37:16-24.
Shortly thereafter, Lewis called to have the Mercedes towed
to Bud's Towing in Caroline County.
The Search of the Car and Phones Pursuant to a
the officers had the Mercedes towed, Sadler applied for a
search warrant for the Mercedes. In Sadler's affidavit in
support of the search warrant, he described the traffic stop
in detail. He also described Walker's "casting"
by the front of the Mercedes and Walker's alert by the
passenger's side door. See PL's Ex. 4, at 3
& Attach. A. Sadler further noted that "illegal drug
distributors commonly utilized traps and other hiding
locations for their illegal narcotics to avoid detection by
Law Enforcement." Id. at Attach. A. The
Magistrate Judge issued the search warrant, authorizing
Sadler to search for "[h]eroin, cocaine,
methamphetamine, ecstasy, all derivatives, and cutting
agents." Id. at 2. Other than a wallet and
various personal effects, the officers did not find any
additional evidence other than the Mannite and three cell
the officers searched the car at Bud's Towing, Aziz
applied for search warrants for the three cell phones.
See PL's Exs. 1-3. In Aziz's affidavit in
support of the search warrants,  he explained his
knowledge of "the manner and methods by which narcotics
traffickers conduct their illegal businesses."
Id. at [f 6. Aziz noted that "narcotics
traffickers frequently use numerous cellular telephones to
further their illegal activities and to evade detection from
law enforcement." Id. at If 6(c). Aziz further
explained that drug traffickers maintain "[r]ecords and
other evidence" of drug transactions in their cell
phones, id. at If 6(f), including "wire and
electronic data concerning telephonic contact, and text
messages with co-conspirators, as well as contact lists,
'friends' lists[, ] and other compilations of contact
information for co-conspirators," id. at |f
providing a detailed account of the traffic stop and the
facts leading up to the search of the car, Aziz explained
that he thought "the three cellular telephones located
in Peterson's car each contain evidence of Peterson's
drug trafficking activities." Id. at If 19.
According to Aziz, "[i]t is also common for illegal drug
traffickers to utilize separate cellular telephones for
customers and for sources of supply." Id.
Because "sources of supply will provide lower-level drug
traffickers with a cellular phone to be used solely for the
purpose of contacting the supplier," those cell phones
"would contain evidence to help identify the source of
supply, as well as the locations, frequency[, ] and methods
of the sourcing of illegal drugs to the drug
trafficker." Id. Additionally, drug traffickers
often "have a phone that is used for customers and
coconspirators to contact the drug trafficker," so the
phones "would contain evidence to help identify the drug
trafficker's coconspirators and customers, as well as the
locations, frequency[, ] and methods of the drug
trafficker's distribution activities." Id.
sought (1) "[a]ll records on the telephones and storage
device;" (2) "[e]vidence of user attribution
showing who used or owned the phones at the time the things
described in this warrant were created, edited or
deleted;" (3) "[r]ecords evidencing the use of the
Internet;" and (4) "[p]hotographs, video
recordings[, ] or images either taken on or downloaded onto
the target devices, that depict Peterson, Peterson's
associates, travel, expensive assets[, ] . . . large sums of
currency, illegal narcotics, firearms, [and] other indicia of
illegal drug trafficking." Id. at Attach. B.
United States Magistrate Judge David J. Novak issued the
search warrants on June 28, 2018, finding that Aziz's
affidavits established probable cause to search the cell
phones. After searching the contents of the cell phones, the
officers corroborated Queen's account of her text
messages with Peterson.
The Strip Search
Russell arrested Peterson at the roadside, Russell drove
Peterson to Pamunkey Regional Jail to appear before a
magistrate. Before entering the facilities, Russell took
Peterson through the jail's sally port. While still
inside the sally port, Russell twice asked Peterson if he had
anything illegal, and warned that bringing contraband into
the jail would be a felony offense. Peterson told Russell
that he did not have anything illegal. Russell escorted
Peterson from the sally port to the magistrate's intake
area, which is open to the public.
obtained a warrant from the magistrate and served it on
Peterson. The magistrate conducted a bond hearing and granted
an unsecured bond for Peterson. The jailor on duty, Sergeant
Richard Hagen, came out from the intake area to process
Peterson. At Pamunkey, standard procedure for processing
involves fingerprinting and photographing defendants. Hagen